117 Mo. App. 453 | Mo. Ct. App. | 1906
Action against a common carrier brought by the consignees and owners of certain merchandise to recover damages for injury thereto, alleged to have been caused by the negligence of defendant. Plaintiffs had judgment and defendant appealed.
The defense is that the goods were damaged not by any negligence of defendant, but by the Act of God, that is, they were caught in the extraordinary flood of 1903 that wrought such havoc in the bottonis of the Missouri and Kansas, rivers at Kansas City. At the conclusion of the evidence, defendant requested the giving of a peremptory instruction in its favor, which the court refused and the issues of fact submitted to the jury very clearly appear in this extract from the instruction given. ;
“And, if you shall further believe from the evidence that said goods were destroyed or damaged while in the possession of defendant and that they were so destroyed or damaged by reason of negligence on the part of defendant, then your verdict should he in favor of the plaintiffs. But, if you shall believe from the evidence that said goods were so destroyed or damaged by reason of a sudden and extraordinary flood after coming into the possession of the defendant at Kansas City .(if
Defendant’s contention is that there is no evidence in the record accusing it of negligence; that all of the evidence points to the Act of God as the proximate cause of the injury and therfore the case should not have gone to the jury.
We think it is fairly inferable from the facts appearing in the evidence introduced by plaintiffs that both shipments of goods were in the possession of defendant for carriage to their destination during Saturday, May 30th, and thereafter; that defendant had negligently delayed forwarding them and that, had the usual and reasonable diligence been employed, the goods would have escaped the flood; but all this may be true and still the facts in proof fall short of showing that the injury was the direct and. not a remote result of defendant’s negligence. As was well stated by Ellison, J., in the case of Moffatt v. Railroad Co., 113 Mo. App. 544, 88 S. W. 117. “Whenever the negligence of the carrier mingles with the Act of God as a co-operative cause, the carrier is liable provided the resulting loss is within the probable consequences of the negligent act; otherwise it will be too remote and disconnected to be considered the probable cause.” In the exercise of reasonable care, of which negligence is the antonym, human foresight and prudence cannot foresee and guard against the. sudden, unheralded and overwhelmingly powerful outbursts of natural forces and, because neither time, place, nor de
But, when an extraordinary natural disturbance gives warning of the time and path of its approach and of its general magnitude and power, they (such as common carriers), whose business places them in charge of the safety of persons and of the property of others, are charged with the duty of exercising care, commensurate with the exigencies of the situation, to protect those, whom they serve, against injury from the approaching danger. A breach of such duty is negligence and, if injury results, must be regarded as a proximate and not a remote cause of the injury. We so held in the recent case of Pinkerton v. Railway, 117 Mo. App. 288.
In the application of these principles to the facts of the case in hand, it is important to consider upon whom devolves the burden of proof with respect to the issue of concurring negligence. In showing the delivery in good order of the goods to defendant for transportation and the failure of defendant to deliver them in like order at their destination in a reasonable time, plaintiffs presented a prima facie right to a recovery for the damages sustained. It then devolved upon defendant to excuse itself from liability by showing, as it did, that the injury was the direct result of the Act of God under consideration, but the defendant was not required to go further and show affirmatively that it was guilty of no negligence. The burden of proving the concurring negligence of defendant was upon the plaintiffs. That is, it was incumbent upon them to show that defendant knew, or by the exercise of due care might have known, of the ■coming, of a flood of sufficient volume to submerge their freight house and yards in time to have removed the
Turning to the evidence before us, plaintiffs introduced proof of facts sufficient to sustain their initial burden without referring to the cause of the injury to their property and then rested; defendant thereupon showed that the goods were injured by a sudden and extraordinary flood, tbe like to which had not occurred within the memory of living witnesses; plaintiffs, in rebuttal, in effect conceded the damage was inflicted by the flood and introduced testimony showing its magnitude and the general destruction wrought by it to all kinds of property situated in the river bottoms; so that from the uncontradicted testimony of both parties, the fact stands admitted that the direct cause of the injury was a flood of such unprecedented dimensions and.destructiveness as to fall within the class designed as Acts of God and defendant’s demurrer to the evidence should have been sustained, unless it further appears from the evidence that defendant knew or by the exercise of reasonable care might have known of the approach of a flood of such proportions in time to have removed freight in its freight house and in cars on track to a place of safety.
The only fact in proof, pointed to by plaintiffs, as even tending to show that defendant had any such warn-, ing of the approach of danger to its property is found in the testimony of the local freight agent of the Grand Island Company, who stated that at about three o’clock in the afternoon of Saturday, May 30th, he observed that the water was “lapping the rails” in the Grand Island yards and spoke to the yardmaster “about pulling some cars out of the yard and he said he would as soon as the train got in that evening, and it was about ten o’clock when the train got in, and it was so high they could not touch them. It was about six o’clock in the evening when the flood struck us.” It appears that the freight house and yards of defendant were close to the bluffs and on
The' one fact that the water at a given time had reached a certain abnormal stage was of itself no indicar tion that it would continue to rise or, if it did, that it would increase to any certain volume. To' hold defendant guilty of negligence, the presumption must be indulged, without any fact in proof to sustain it, that the height of the water in the afternoon of Saturday alone indicated that it might continue to rise until it became so high that it would reach freight in defendant’s house and cars. It must be apparent that in the absence of any
In this state' of proof, the demurrer to the evidence should have been given and it follows that the judgment must be reversed and the cause remanded.